Y. K. Sabharwal, J. ( 1 ) BY order, made on January 23, 1989 in exercise of powers conferrd by Section 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (as amended) (for short the Act ) the petitioner was ordered to be detained with a view to preventing him from acting in any manner prejudicial to the augmentation of foreign exchange. Briefly the facts, as emerging from the grounds of detention are these :- 2. The officers of Delhi Zonal Office of the Enforcement Directorate, on the basis of reliable information, conducted search on two business premises and one residential premises of the petitioner on July 12, 1988 under section 37 of the Foreign -Exchange Regulation Act, 1973 (for short the FERA ). As a result Rs. l,04,000. 00 and documents were recovered and seized from one business premises and certain documents were recovered and seized from residential premises. Nothing was seized from the other business premises. While the searches were on at the two business premises certain persons were found in suspicious circumstances outside/inside the business premises. The personal search of the said persons under section 34 of the FERA resulted in recovery and seizure which are as follows :- ( 3 ) THE aforesaid persons were also examined under Section 40 of the FERA on the same date i. e. July 12, 1988. Some of them stated that they had come and some slated that they were going to the shop of the petitioner to exchange the seized currency. The statement of the petitioner was also recorded on July 12, 1988 and he was confronted with documents seized from his business premises but he preferred not to implicate himself in the statement. However, documents seized from the business premises of the petitioner revealed his indulgence in the compensatory payments racket despite the fact that the petitioner chose not to incriminate himself. As a follow up action, statements of certain other persons were also recorded. The petitioner was arrested under Section 35 of the FERA on 13th July 1988 and was ultimately released on bail on August 9,1988. As a follow up action, statements of certain other persons were also recorded. The petitioner was arrested under Section 35 of the FERA on 13th July 1988 and was ultimately released on bail on August 9,1988. In view of the facts disclosed in the grounds of detention the detaining authority arrived at the conclusion that the petitioner has been not only indulging in receiving and making payments in India unauthorisedly under instructions from persons resident outside India but was also indulging in unauthorised sale and purchase of foreign exchange in violation of the provisions of the FERA. The detaining authority on being satisfied that the unauthorised transactions indulged in by the petitioner have affected the foreign exchange resources of the country adversely, directed the detaining of the petitioner under the Act with a view to preventing him from indulging in activities prejudicial to the agumentation of country s foreign, exchange resources. ( 4 ) PURSUANT to the detention order dated January 23rd, 1989 the petitioner who was detained on April II, 1989 by this petition challenges the order of detention and his continued detention on various grounds. ( 5 ) MR. Arora, learned counsel for the petitioner contends that long and undue delay of two months and 20 days in excution of the order of detention, despite the petitioner being available on the address given casts doubt on the genuineness of the detaining authority to detain the petitioner preventively and, therefore, the order of detention and continued detention of the petitioner is illegal and void. The detaming authority in the affidavit filed in opposition to the writ pinion controverts the ground of delay in execution of the detention order and says, "several attempts were made to apprehend the petitioner for the purposes of detention but he was available at the address known to the department. The detention order could not be executed earlier for the above reasons and there is no delay in execution thereof as alleged. " ( 6 ) IT is well settled that if there is delay in arresting the detenue pursuant to the order of detention which is prima facie unreasonable the State or the detaining authority must give reasons explaining the delay (See S. K. Nizamuddin v. State of West Bengal, AIR 1974 SC 2353 ). " ( 6 ) IT is well settled that if there is delay in arresting the detenue pursuant to the order of detention which is prima facie unreasonable the State or the detaining authority must give reasons explaining the delay (See S. K. Nizamuddin v. State of West Bengal, AIR 1974 SC 2353 ). Whether the explanation for delay is reasonable or not will depend on the peculiar facts and circumstances of each case. The absence of reasonable and satisfactory explanation of delay would draw considerable doubt on the genuineness of the subjective satisfaction of the detaining authority and in such an eventuality the order of detention has to be quashed. In Nizammudin s case where the delay was of about 2 months, the order of detention was set aside by ths Supreme Court for the reason that no satisfactory explanation had been given in the affidavit in reply filed by the District Magistrate. Dealing with the question, the Supreme Court said "since in the present case no explanation for the delay has been given in the affidavit in reply filed by the District Magistrate, we are not at all satisfied that the District Magistrate applied his mind and arrived at a real and genuine subjective satisfaction that it was necessary to delain the petitioner with a view to preventing him from acting in a prejudicial manner. The condition precedent for the making of the order of detention was, therefore, not satisfied and consequently the order of detention must be quashed and set aside. " ( 7 ) IN a recent ease Re : T. A. Abdul Rahman v. State of Kerala and Ors. 1989 Vol. 3 Judgments Today 444, the Order of detention was set aside as the respondent had failed in explaining the delay of three months in securing the arrest of the detenu from the date of passing of the order. The Supreme Court said: "similarly when there is unsatisfactory and unexplained delay between the date of order of detention and the date of securing the arrest of the detenu, such a delay would throw considerable doubt on the genuineness of the subjective satisfaction of the detaining authority leading to a legitimate inference that the detaining authority was not really and genuinely satisfied as regards the necessity for detaining the detenu with a view to preventing him from acting in a prejudicial manner. " ( 8 ) IN Yogesh Chopra v. Administrator of Delhi and Ors. Crl. Writ 111/88 decided on April 19, 1988 the order of detention had been made on January 8, 1988 and the delay in execution of the order of detention was for a period of one month and 24 days. The explanation given in the affidavit was that the petitioner had absconded after the issuance of the detention order and could only be detaining on March, 1, 1988 and, therefore, there had not been any undue delay in executing the order. While quashing the detention order it was observed by this Court that in the affidavit it had not been stated as to when the order of detention was taken for service to the house or business premises of the petitioner, who took the same for service and what was the report made by the serving officer on any such process. It was also observed that it was the duty of the respondents to have specifically stated on affidavit the date or the dates on which the order of detention was attempted to be served on the petitioner and what was the reports of the serving officer thereon. The court to the conclusion that delay of one month and 24 days in executing the order of detention had remained totally unexplained by the respondents on whom the burden of explaining the same lay by submission of specific affidavits or affidavit of the concerned persons and by placing the material berore the court. Following the law laid down by the Supreme Court in Nizammudin s case and the various judgments of this court, the court came to the conclusion that unexplained delay in serving the order of detention clearly goes to show that the detaining authority was not genuinely satisfied as to the necessity of passing the order of detention and the order of detention was made without proper application of mind. ( 9 ) IN the affidavit filed in the present case, only a vague plea has been taken that several attempts were made to apprehend the petitioner but he was not available at the address known to the department. ( 9 ) IN the affidavit filed in the present case, only a vague plea has been taken that several attempts were made to apprehend the petitioner but he was not available at the address known to the department. In the affidavit, if has not been stated what those attempts were; how many attempts were made; on which dates the said attempts were made; When for the first time an attempt was made; what was the reports thereupon; which premises were visited and by whom; and whom the serving officer met and also whether the police authorities were asked to apprehend the petitioner. All these material and relevant facts arc conspicious by their absence in the affidavit though a specific grievance has been made about the delay in execution of the order of detention in the writ petition. The law has been well settled for number of years that if there is any delay in not arresting the detenue pursuant to the order of detention which is prima facie unreasonable, the detaining authority must give reasons explaining the delay. Inview of the settled law there can be no justification for not giving the material and relevant facts in the affidavit explaining the delay. As mentioned hereinbefore, only vague plea has been taken in the affidavit without particularising the attempts made to arrest the detenu. ( 10 ) FACED with above difficulty, learned counsel for the respondent, sought leave to refer to the departmental file to point out the attempts made to arrest the petitioner. Counsel for the petitioner strenuously opposed the prayer and submitted that it will cause a great prejudice to the petitioner. It was urged that the petitioner could give various facts to show that he was available at the given address during the relevant period, had the respondent given material and relevant facts in their return filed to the writ petition setting out the attempts made to arrest the petitioner. No reasonable explanation could be given by learned counsel for the respondent why the material and relevant facts and circumstances explaining the delay were not incorporated in the affidavit of the detaining authority. The respondents cannot be permitted to spring a surprise on the petitioner during the course of arguments by refering to facts from the departmental files without incorporating those facts in the return filed to the Rule. The respondents cannot be permitted to spring a surprise on the petitioner during the course of arguments by refering to facts from the departmental files without incorporating those facts in the return filed to the Rule. Such a practice is likely to cause prejudice to the petitioner and is also likely to lead to avoidable delays. As it is, for variety of reasons, these petitions which are of urgent nature on account of liberty of detenus being involved, do not come up for hearing as expeditiously as required and grant of further opportunities will lead to further delays. It is elementary that an adversy is entitled to a reasonable opportunity to explain the facts pleaded by the opposite party. The grant of leave sought by the respondent would amount to denial of opportunity to the petitioner to meet the case set up against him. ( 11 ) IN support of the contention that the respondent, at the stage of the arguments, cannot bring new facts from the record and the court should not go through the files of the government, learned counsel for the petitioner relies on a decision of the Supreme Court in Kirti Kumar Chamanlal Kundaliya v. Union of India and others AIR 1981sc 1621. In the cited case while reversing the judgment of the High Court, the Supreme Court observed : "it was not open to the court to have waded through the confidential file of the government in order to fish out the point against the detenu. "counsel for the petitioner submits that in view of the law laid down by the Supreme Court, it is not open to this court to wade through the confidential file of the government to fish out a point against the detenu particularly when material and relevant facts have not been incorporated in the affidavit. ( 12 ) LEARNED counsel for the respondent, on the other hand, relying on State of Gujarat v. Sunil Fulchand Shah and another, AIR 1988 SC 723 contended that it was always open to this court to go through the original file to dispel any doubt. It is submitted that Para 8 of the judgment of the cited case shows that the original file had been produced and was perused by the Supreme Court. It is submitted that Para 8 of the judgment of the cited case shows that the original file had been produced and was perused by the Supreme Court. The relevant facts of the cited case are that the High Court had quashed the order of detention accepting the plea urged on behalf of the detenu that the retraction by other persons (co-conspirators) was not placed before the detaining authority and was, therefore, not considered by him, thus vitiating the detention order. It was contended before the Supreme Court on behalf of the State that the said documents were also placed before the detaining authority and he had applied his mind thereto. The affidavit filed in the said case was that of Deputy Secretary, Home Department (Special) of the State of Gujarat and not of the detaining authority. In the said affidavit it had been pleaded that the detaining authority had taken into consideration the document containing the retraction. Counsel for the respondent/ detenu contended before the Supreme Court that the plea of the State that the said document was considered by the detaining authority should be rejected in absence of an affidavit by the detaining authority. The Supreme Court observed that in a case where a point of nature as mentioned above arises, the detaining authority should personally affirm on oath the stand taken on his behalf but it was not an inflexible rule applicable to all detention cases irrespective of the circumstances. It was noticed by the Supreme Court that the Minister who was authorised under the rule of business to pass orders on behalf of the government in detention matters had ceased to be a Minister before the filing of the affidavit and he was, therefore, not available and under those circumstances the Deputy Secretary had filed his affidavit. The Supreme Court was considering a case where affidavit had been filed though not by the detaining authority but by other person conversant with the facts of the case. Under those circumstances the Supreme Court, with a view to dispel any suspicion about the detaining authority having considered thedocument or not had perused the original file. It was not held by the Supreme Court that where material and relevant facts were not pleaded in the affidavit, the court could peruse the record with a view to find out an answer to ground of challenge to the detention order. It was not held by the Supreme Court that where material and relevant facts were not pleaded in the affidavit, the court could peruse the record with a view to find out an answer to ground of challenge to the detention order. The facts had been incorporated in the affidavit but as the affidavit was not of detaining authority, the Supreme Court perused the record to verify facts and dispel any doubt. The cited case has no applicability on the point in question. ( 13 ) RELIANCE was also placed on a decision of Bhari J. in Arvind Khanna v. Union of India and others, Crl. W. 391/89 [40 (1990) DLT (SN) 24] decided on October 25, 1989 in support of the contention that the respondent can rely up in and refer to the record. In the said case no objection appears to have been raised by the petitioner that the respondents cannot produce the original record and it is not open to the court to wade through the said record in absence of matterial and relevant facts in the affidavit. In absence of any objection it appears to have been presumed that the record can be produced and perused by the court. Furthermore, the learned Judge had relied on the letters and certificates sent by the petitioner himself and there was no doubt about the authenticity of the said documents. Arvind Kumar s case cannot be relied on for She proposition being put forth by the respondent. ( 14 ) TO summarise, in my view, ordinarily the respondents cannot be permitted to produce and rely on the original record in support of the plea in respect of which the material and relevant facts have not been incorporated in the affidavit. In cases where the plea is taken and material and relevant facts incorporated in the affidavit, it is always open to the court to peruse the original record to verify the correctness of the facts and dispel any suspicion or doubt. It is the obligation of the detaining authority to place on record in tlie form of affidavit, all material and relevant facts, on which it relies in support of detention order. In exceptional cases, however, the court can always peruse inc original records. I would not like to venture or illustrate the exceptional cases as that will depend on facts and circumstances of each case. In exceptional cases, however, the court can always peruse inc original records. I would not like to venture or illustrate the exceptional cases as that will depend on facts and circumstances of each case. It has to be borne in mind that detention laws being preventive and not punitive deserve strict compliance on the part of the State. ( 15 ) IN the present case, the respondents have not given any reasonable explanation in the affidavit for the undue and long delay of two months and twenty days in executing the order of detention which shows that the detaining authority was not genuinelty satisfied as to the necessity of passing the order of detention. In view of the aforesaid discussion, the order of detention and the continued detention of the petitioner cannot be sustained. " ( 16 ) ASSUMING the respondents could produce and rely on the record let me examine the record produced before this court and on which reliance has been placed. On the basis of the said record, learned counsel for the respondents submitted that six attempts were made to arrest the petitioner pursuant to the order of detention. The said six attempts were made on 3rd February, 15th February, 25th February, 10th March, 29th March and 30th March, 1989. Counsel relied on the six reports in the file. All the six reports are almost of same tenor and show that on or about the dates of the said reports the person reporting had made discreet inquiries about the petitioner which revealed that either he was not in Delhi or was not going to his shop at all or was not going to the shop at any fixed time and was not coming to his house. All the six reports arc on loose sheets. The file containing the said reports is not even pregenated. There is no noting portion, none is being maintained according to counsel for the respondents. Unlike the police department the Directorate of Enforcement does not maintain any daily diary etc. As noticed in the earlier part of the judgment there is no wishper in the affidavit about these visits and reports. Though there is a presumption of regularity in respect of official acts but the said presumption is neither unrebuttable nor can it be applied without regard to the facts and circumstances of the case. As noticed in the earlier part of the judgment there is no wishper in the affidavit about these visits and reports. Though there is a presumption of regularity in respect of official acts but the said presumption is neither unrebuttable nor can it be applied without regard to the facts and circumstances of the case. In view of the peculiar facts and circumstances of this case, as narrated above, this court finds it difficult to rely on these reports for coming to the conclusion that the delay, which is otherwise unreasonable, stands explained. ( 17 ) IT is necessary to notice another aspect of the case refter the arguments were heard and judgment was reserved an application (crl. Misc. 25/90) was filed by the petitioner pleading that between 23rd January 1989 and 11th April 1989 he was always available at his residence. In support of that plea the petitioner produced a summon (call notice) dated 1st March 1989 issued by the Enforcement Directorate (sponsoring authority ). The petitioner alleged that he had personally received the said summons at his residence. In the application leave was sought to place the said fact on record. In reply to this application, affidavit of Brahm Prakash, LDC, Enforcement Directorate, 6th Floor, Lok Nayak Bhawan, was tiled. Brain Prakash claimed that he was serving officer who had gone to the house of the petitioner which was found locked. He deposed that whereabouts of the petitioner were not known to his neighbours. It is further deposed by Brahm Prakash in his affidavit that the call notice was pasted by him on the front door of the premises in presence of two independent witnesses. A copy of the report and a copy of of Panchnama both dated 7th March 1989 have been filed alongwith the affidavit. The names of the neighbours are not mentioned in the affidavit In the rejoinder filed by the petitioner in reply to the affidavit of Brahm Prakash, while reiterating that the call letter dated 1st March 1989 was received by the petitioner at his residence, it has been pleaded that during the relevant period children of the petitioner were regularly attending the school and the whole family was residing at the given address. A certificate from school has been filed. A certificate from school has been filed. Further it has been pleaded that the plea of pasting of notice was misconceived as original notice produced by the peti- tioner does not show any mark of its being pasted. In the said rejoinder it is pointed outthat the address of one of the witness, namely, Sh. Trilok Nath on the Panchnama was same as that of the office of the Directorate of Enforcement i. e. 6th Floor, Lok Nayak Bhawan, New Delhi. The residential premises of the petitioner are admittedly located in Old Rajinder Nagar, New Delhi, which is many kms. away from Lok Nayak Bhawan, New Delhi. It is also pointed out in the rejoinder that the address of the second witness Sh. Umesh Chand is given as 11/30, New Rajinder Nagar, New Delhi but there is no house with the said number in New Rajinder Nagar. The inference drawn by the petitioner is that report and Panchnama filed with the affidavit of Brahm Prakash is fabricated. On hearing counsel for the parties by orders made on February 15, 1990 the documents filed with Cr. Misc. 25/90 were taken on record directing that the question as to the effect of the said documents will be dealt with in the judgment. ( 18 ) ON February 16, 1990 another application (Cr. Misc. 33/90) was filed, this time by the respondent, seeking leave to place on record additional facts pleaded in the said application. In this application, it was, inter-alia, sought to be clarified that the serving officer had affixed the call notice dated 1st March 1989 on the front door of the premises and not pasted andstaling that the affixing does not necessarily mean actually using paste or glue or sticking it on the door. It was further pleaded that even if the notice is placed inside the side portion of the door which is getting out, then it would amount to affixing . With regard to Tirlok Nath it was stated that he is. a tea man in the Lok Nayak Bhawan in which there arc many other buildings. It was further pleaded that Trilok Nath is an independent witness. Regarding the second witness Umesh it was stated that he was just passing from there and when the serving officer asked his address he gave his address as given in the Panchnama. a tea man in the Lok Nayak Bhawan in which there arc many other buildings. It was further pleaded that Trilok Nath is an independent witness. Regarding the second witness Umesh it was stated that he was just passing from there and when the serving officer asked his address he gave his address as given in the Panchnama. It is also pleaded in the application that the petitioner has not given explanation as to why he did not appear on 13th March 1989 the date given in the call notice dated 1st March 1989. When Cr. Misc. 33/90 came up for hearing on february 9, 1990 after notice to the petitioner, a controversy arose as to whet any reply to the said call notice dated 1st March 1989 had been received or not. Learned counsel for the respondent stated that he had checked up the record and had throughly discussed the matter with the officers and was in a position to make a categorical statement that no letter was received from the counsel of the petitioner in response to call letter dated 1st March 1989. On the other hand, counsel for the petitioner stated that in response to call letter dated 1st March 1989 reply had been sent by the counsel for the petitioner. Inview of the said controversy the petitioner was granted time to file reply to Cr. Misc. 33/90. Reply to Cr. M. 33/90 has been filed by the petitioner. While reiterating that call letter dated 1st March 1989 was personally received by him, petitioner has filed photostat copy of letter dated 8th March 1989. The letter dated March 8, 1989 was sent by counsel for the petitioner to the Assistant Director of Enforcement Directorate, in response to call letter dated March 1,1989. By call letter dated 1st March 1989 the petitioner was required to be present either Personally or through lawyer or authorised representative before the Assistant Director of Enforcement. The respondent though has filed rejoinder to the aforesaid reply of the petitioner, but no reasonable explanation has been given as to how the statement was made on 9th February 1990. Now admittedly the reply dated 8th March 1989 was received from the petitioner through his counsel. On hearing the counsel for the parties in support of Cr. Misc. The respondent though has filed rejoinder to the aforesaid reply of the petitioner, but no reasonable explanation has been given as to how the statement was made on 9th February 1990. Now admittedly the reply dated 8th March 1989 was received from the petitioner through his counsel. On hearing the counsel for the parties in support of Cr. Misc. 33/90 the additional facts pleaded in the application were taken on record with a direction that the question as to its effect will be dealt with in the judgment. ( 19 ) THE facts narrated above show that there is a. serious controversy between the parties whether the call notice dated 1st March 1989 was received personally by the petitioner or that it was affixed in the manner pleaded in the affidavit of Brahm Prakash. It is not possible to return a positive finding on the said controversy but the manner of preparation of Panchnama casts serious doubt about the genuineness. The explanation with regard to both witnesses is, prima facie, far from satisfactory. As noticed earlier, even according to the case of the respondent, the witness Tirlok Nath has a Tea shop the the same office in which the office of the Directorate is situate. It is not the case of the respondent that the said Tirlok Nath lives anywhere near Rajinder Nagar. Regarding the other witness Umesh Chand, in reply to a plea that there is no address as 11/30, New Rajinder Nagar the plea that the address as given by the witness was mentioned in Panchnama is again far from satisfactory. All these facts, prima facie, cast serious doubt about the authority of the Panchnama. ( 20 ) THE combind effect of the facts and circumstances, is that the respondents have failed to satisfactorily and reasonably explain the delay of two months and 20 days in executing the order of detention, assuming that respondents can rely upon the original record. ( 21 ) THE order of detention has been challenged on various other grounds also but in view of my conclusion as aforesaid, it is not necessary to deal with and decide other grounds except to mention one such other ground. ( 21 ) THE order of detention has been challenged on various other grounds also but in view of my conclusion as aforesaid, it is not necessary to deal with and decide other grounds except to mention one such other ground. One of the grounds taken in the petition and strenuously urged by learned counsel for the petitioner was that the order of detention was made as a result of old enimity between the petitioner and officers of Enforcement Directorate who had filed criminal complaint FIR No. 896 under section 353, 186/34 IPC dated 23rd November 1985 P. S. Karol Bagh, New Delhi, against the petitioner. The contention of learned counsel was that FIR and the other documents connecied with the FIR were not placed before the detaining authority who was not made aware of the confrontation between the petitioner and officers of the Enforcement Directorate. It is not disputed by the respondents that aforesaid facts were not placed before the detaining authority. The respondents, however, contended that the said facts han no relevance. It was submitted on behalf of the petitioner that the mind of the detaining authority might have been influenced one way or the other had the said documents and facts been placed before it and in absence thereof renders the order illegal and void. It is necessary to pronounce on this ground as well in view of my conclusion that the detention of the petitioner is liable to be quashed on account of delay in executing the detention order. ( 22 ) FOR the reasons aforesaid, the petition is allowed, the order of detention and continued detention of the petitioner is set aside and the Rule is made absolute.